Open Letter to Governor Beshear and the Kentucky Legislature.

Kentucky faces an unprecedented educational emergency that demands immediate action from Governor Andy Beshear. Two simultaneous crises—federal funding freezes stemming from recent executive orders targeting the Department of Education and the impending enforcement of the constitutionally questionable SB 181—threaten to devastate the Commonwealth’s educational system and violate fundamental constitutional principles. The time for a special legislative session is now.

The Federal Funding Crisis: Constitutional Violations at the Federal Level

Recent executive orders have effectively frozen federal education funding flowing to states, creating an immediate crisis for Kentucky’s schools. This action raises serious constitutional concerns under multiple provisions of the Constitution.

Separation of Powers Violations: Article I, Section 9 of the Constitution grants Congress—not the executive branch—the power of the purse. The Supreme Court’s decision in Train v. City of New York (1975) established that the President cannot unilaterally refuse to spend funds that Congress has appropriated. By freezing education funding through executive order, the current administration may be engaging in an unconstitutional usurpation of legislative authority.

Due Process Concerns: The sudden freezing of funds without proper procedural safeguards violates the Due Process Clause of the Fifth Amendment. States and school districts have legitimate expectations based on appropriated federal funds, and these cannot be arbitrarily eliminated without due process.

Spending Clause Implications: Under South Dakota v. Dole (1987), while Congress can attach conditions to federal spending, those conditions must be clearly stated and related to the federal interest. Retroactive changes to funding conditions through executive action lack the clarity and congressional approval required by constitutional spending clause jurisprudence.

Kentucky’s Immediate Financial Exposure

The financial impact on Kentucky is staggering. Federal education funding comprises approximately 8-12% of the state’s total education budget, translating to hundreds of millions of dollars annually. This includes:

• Title I funding for low-income schools
• IDEA funding for special education services
• Child nutrition programs
• Teacher preparation grants
• Rural education assistance

The sudden loss of these funds would force immediate cuts to essential services, potentially violating Kentucky’s constitutional obligation under Section 183 of the Kentucky Constitution to provide an “efficient system of common schools throughout the State.”

SB 181: A Compound Constitutional Crisis

While Kentucky grapples with federal funding issues, SB 181—set to take effect August 15, 2025—presents an additional constitutional crisis at the state level. The convergence of these two issues creates a perfect storm requiring immediate legislative intervention.

First Amendment Violations: As detailed in our previous analysis, SB 181’s restrictions on electronic communication between school employees and students extend far beyond legitimate workplace concerns into protected areas of speech and association. The law fails the Pickering balancing test by prioritizing administrative convenience over fundamental constitutional rights.

Equal Protection Issues: SB 181 creates arbitrary classifications among community members based solely on employment status, potentially violating the Equal Protection Clause of the Fourteenth Amendment.

Vagueness and Overbreadth: The law’s broad definitions and sweeping restrictions may violate due process requirements for specificity in criminal and civil penalties.

Why a Special Session is Constitutionally Necessary

Governor Beshear has both the constitutional authority and the duty to call a special session under these extraordinary circumstances.

Constitutional Authority: Article II, Section 12 of the Kentucky Constitution grants the Governor explicit power to “convene the General Assembly in extraordinary session” when circumstances warrant immediate legislative action.

Fiduciary Duty to the Commonwealth: The Governor’s oath of office requires him to protect Kentucky’s interests and uphold both state and federal constitutional principles. The current crisis directly threatens both.

Precedent for Emergency Sessions: Kentucky has previously called special sessions for fiscal emergencies and constitutional crises. The current situation—involving both massive funding disruptions and constitutional violations—clearly meets the threshold for extraordinary legislative action.

Legal Precedent Supporting Immediate Action

Several cases support the Governor’s authority and duty to act in constitutional crises:

State Sovereignty Principles: In Printz v. United States (1997), the Supreme Court affirmed that states have not only the right but sometimes the duty to resist federal actions that violate constitutional principles or unduly burden state sovereignty.

Emergency Powers Doctrine: Youngstown Sheet & Tube Co. v. Sawyer (1952) established that while executive power is broad in emergencies, it must still operate within constitutional bounds. This principle applies to both federal overreach and state responses to that overreach.

Intergovernmental Immunity: The doctrine of intergovernmental immunity, established in McCulloch v. Maryland (1819) and refined in subsequent cases, protects states from federal actions that would undermine their essential governmental functions—including education.

Immediate Legislative Priorities for the Special Session

A special session should address both crises simultaneously through comprehensive legislation:

Federal Funding Response

1. Emergency appropriations to replace frozen federal funds temporarily
2. Legal authorization for the state to join multi-state litigation challenging the federal funding freeze
3. Contingency planning for continued federal obstruction
4. Revenue diversification measures to reduce dependence on federal funding

SB 181 Repeal and Reform

1. Immediate repeal of SB 181’s most constitutionally problematic provisions
2. Replacement legislation that addresses legitimate concerns about inappropriate conduct while respecting constitutional rights
3. Clear guidelines distinguishing between professional and personal communications
4. Safe harbor provisions for existing community relationships

The Economic Imperative

Beyond constitutional concerns, the economic case for immediate action is overwhelming. Kentucky’s education system supports thousands of jobs and serves as a foundation for economic development. The combined impact of federal funding loss and SB 181’s implementation could:

• Force teacher layoffs and program cuts
• Reduce Kentucky’s competitiveness for business relocations
• Undermine workforce development efforts
• Create legal liability for districts struggling to comply with contradictory mandates

National Leadership Opportunity

By calling a special session, Governor Beshear would position Kentucky as a national leader in defending both educational funding and constitutional principles. This leadership could:

• Inspire other states to take similar protective actions
• Strengthen Kentucky’s position in potential federal litigation
• Demonstrate commitment to constitutional governance
• Protect Kentucky’s interests regardless of federal political changes

The Moral Imperative

Most importantly, Kentucky’s children cannot wait for these crises to resolve themselves. Every day of delay means:

• Students losing essential services
• Teachers facing job uncertainty
• Communities losing educational resources
• Constitutional rights remaining unprotected

Conclusion: The Time for Action is Now

Governor Beshear faces a defining moment in his tenure. The convergence of federal constitutional violations through funding freezes and state constitutional violations through SB 181 creates an emergency that demands immediate legislative action.

The Governor’s constitutional authority to call a special session exists precisely for moments like this—when extraordinary circumstances threaten the fundamental interests of the Commonwealth and its citizens. The legal precedent supports action, the economic case is overwhelming, and the moral imperative is clear.

Kentucky cannot afford to wait for regular legislative sessions or hope that these crises resolve themselves. The state’s educational system, constitutional principles, and economic future hang in the balance.

Governor Beshear must call a special session immediately to:

• Protect Kentucky from unconstitutional federal funding freezes
• Repeal the constitutionally problematic provisions of SB 181
• Ensure educational funding continuity
• Defend fundamental constitutional rights

The children of Kentucky—and the Constitution itself—demand nothing less than immediate, decisive action. The question is not whether the Governor has the authority to act, but whether he has the courage to use it when Kentucky needs leadership most.

The clock is ticking. Every day of delay is a day of lost opportunities, diminished rights, and threatened educational futures. Governor Beshear must act now.